Delhi District Court
11.In Supreme Court Of India Thakorlal ... vs The State Of on 28 June, 2013
IN THE COURT OF MS.PURVA SAREEN,METROPOLITAN MAGISTRATE-01
SOUTH, SAKET COURT, NEW DELHI
State v. Nageshwar Rao
FIR No.220/12
PS FP Beri
U/s 363/365 IPC
JUDGMENT
Date of Institution : 03.11.2012
Date of Commission of offence : 22.08.2012
Name of the complainant : Paulina Kujur
Name & address of the accused : Nageshwar Rao S/o Sh.Balu Rao
R/o 2-188, Seetham Pela,
Sujatha Nagar, Andhra Pradesh
Offence complained of : 363/365 IPC
Plea of accused : Plead not guilty
Final Order : Convicted
Date reserve for judgment : 25.06.2013
Date of announcement of judgment : 28.06.2013
Briefly stated the facts of the case are:
1. Accused Nageshwar Rao has been sent up to face trial with the allegations that he had taken away Baby Lavanya out of the keeping of her lawful guardian i.e. her mother/complainant Paulina Kujur without her consent with intent to cause the baby Lavayna to be secretly and wrongfully confined. Statement of complainant (mother of victim) was recorded upon which FIR was registered and statements of witnesses were also recorded. Necessary investigation was conducted. Accused was arrested and taken into custody by the police officials. After State v. Nageshwar Rao Page 1 FIR No.220/12, PS Fateh Pur Beri conclusion of the necessary investigation, charge sheet in the matter was prepared and filed in the Court. Cognizance upon the offence was then taken by the court. Copies of the challan were supplied to accused.
2. A prima facie charge u/s 365 IPC was framed against the accused by the Ld. Predecessor of the court on 30.11.2012 to which he pleaded not guilty and claimed trial.
3. Matter was then listed for Prosecution Evidence. Prosecution in support of its case examined 13 witnesses as under:-
(i) PW1 Ms.Paulina Kujur (complainant) deposed before the court that her first husband had expired in the year 2010 and she had three children from the first wedlock. Accused Nageshwar is her second husband. They resided together for a short time and accused started misbehaving with her. Therefore, she left his company in the month of March 2012 along with children and started residing separately. It is further stated by witness that accused used to meet her on the way to her office and used to threaten her that he shall kidnap her children if she dosn't come back to him. On 22.08.2012 she sent her daughter Lavanaya aged 4 years to school at Phase I , Aaya Nagar. She boarded the school van in her presence. When Lavanaya did not return, she inquired from school and she was told that her daughter did not attend the school that day. Her neighbour Nutan whose son Jitesh aged 5 to 6 years was also studying in the same school informed that he had seen the accused taking away Lavanaya. A complaint was made to the police and FIR was registered. Witness further stated that on 01.09.2012 she along with SI Pradeep, HC Dharam Pal and Ct. Inderaj went to District State v. Nageshwar Rao Page 2 FIR No.220/12, PS Fateh Pur Beri Khammam, Andhra Pradesh where the accused was residing and with the assistance of local police they went to the residence of accused. She saw accused carrying her daughter. He was apprehended by the police staff at her instance. Baby Lavanaya was recovered and handed over to her. All proceeding was done on 05.09.2012. Accused was interrogated and his statement was recorded. Accused was arrested and his personal search was conducted. One Micromax mobile was recovered and seized after his personal search. Accused and Baby Lavanaya were taken to hospital for medical examination.
In her cross examination by ld. Defence counsel it is stated by witness that she is employed as ASI in Delhi Police. Accused used to suspect her and never allowed her to talk to any person. She had never visited the house of accused after their separation. She along with children had visited the residence of her in laws at Khammam after her marriage. She was not on talking terms with her parents in law due to linguistic differences. Mother of the accused was around 70 to 75 years. It is further stated by witness that she had lodged various reports with the local police regarding misbehavior and harassment made by the accused. She did not remember the exact dates of her complaints. Neighbours of the accused at District Khammam were not interrogated by IO.
(ii) PW2 Nutan deposed before the court that on 22.08.2012 her children Rahul and Nitin were studying in their respective classes. In the morning at about 7 am when she went to drop her children to school, she saw accused Nageshwar Rao, husband of her neighbour Paulina Kujur was standing on the gate of the school. Baby Lavanaya was also studying in the same school along with her children. She commuted to the school in State v. Nageshwar Rao Page 3 FIR No.220/12, PS Fateh Pur Beri the school van. When she dropped her children at the gate of the school, school van carrying school children also arrived on the gate and on seeing van, accused Nageshwar rushed to the van. She did not see anything else and returned back. IO recorded her statement on the same day in the evening.
In her cross examination by ld. Defence counsel it is stated by witness that her statement was recorded at her residence at about 4/4.30 pm. Her signatures were not obtained on any paper. It is denied by witness that she is deposing falsely at the instance of her neighbour Paulina Kujur.
(iii) PW3 Ms.Celestine was the Principal of Sahoday Jr. School who deposed that as per school record/attendance register of LKG of 22.08.2012 Baby Lavanaya Kujur was absent whole day. She brought the attendance register in the court and Ex.PW3/A. In her cross examination by ld. Defence counsel the witness admitted that attendance register is prepared by class teacher and cross signed by her in the end of the month. It is admitted by witness that she is deposing as per record and have no personal knowledge of the facts of the present case.
(iv) PW4 HC Rajnish was duty officer who proved the FIR vide memo Ex.PW4/A and endorsement on rukka vide memo Ex.PW4/B. Accused did not prefer to cross examine the witness.
(v) PW5 Yashwant Singh was driver of school van who deposed before the court that he was working as driver of van bearing no.DL-3CAY-2237 for Sarvodya Jr. School. On 22.08.2012 at about 6.30 am he took the child Baby Lavanaya from F Block Aya Nagar and left all children State v. Nageshwar Rao Page 4 FIR No.220/12, PS Fateh Pur Beri including her at the gate of the school at about 7 am and thereafter came back to his residence along with van. At about 12 Noon Jagmohan who used to lift children from school and left them at their residence asked on mobile if baby Lavanaya was brought to school by him to which he answered him in affirmative. Later on, he came to know that Baby Lavanaya did not return to her residence. He also tried to search her. One Jitesh studying in the same school told that he saw that Lavanaya was in the lap of her father and she was weeping.
Witness correctly identified the photograph of victim placed on judicial file in the report to Incharge Missing Person Tracing Center, CBI.
In his cross examination by ld. Defence counsel it is stated by witness that he put the signature on one document prepared by police officials.
(vi) PW6 Dr. Amrita Rai proved the MLC of Baby Lavanaya bearing no.C/61908 dt.07.09.2012 vide memo Ex.PW6/A. Accused did not prefer to cross examine the witness.
(vii) PW7 HC Dharampal deposed before the court that on 01.09.2012 he had joined the investigation of present case with SI Jai Veer and Ct.Indraj and they went to Khammam, Andhra Pradesh. On 05.09.2012 they reached at the local PS Sethampet, Sujat Nagar, Khammam and informed the incharge about circumstances. Ct.B.M. Naik accompanied us to the house of accused. When they reached at the house of accused, he was present there and baby Lavanaya was with him. On pointing out of complainant accused was apprehended and baby Lavanaya was recovered and seized and handed over to the complainant/mother vide handing over memo. Accused was interrogated and thereafter arrested State v. Nageshwar Rao Page 5 FIR No.220/12, PS Fateh Pur Beri and his personal search was conducted. Nothing was recovered in the personal search of accused except one mobile. Mobile was seized. Medical of accused and baby Lavanaya was got conducted at local hospital. Accused was produced before concerned court and transit remand was obtained. IO recorded his statement.
In his cross examination by Ld. Defence counsel it is stated by witness that he did not remember the exact time when they reached at the residence of the accused, however, it was between 10 am to 2 pm. He further did not remember the exact time taken in preparing of documents. Mother of the accused was present in the house. IO did not interrogate baby Lavanaya.
(viii) PW8 Baby Lavanaya was victim who was questioned by the court and her statement was recorded without oath.
Chamber proceedings were done in which she stated that uncle Nageshwar took her from the school. He took her away from her house in a bus. She remained with him for six days. Thereafter, police apprehended him. It is further stated by witness that uncle used to give her Kurkure and biscuits. She was kept nicely and lovingly by him. She did not remember the date when she was taken by him.
In her cross examination by ld. Defence counsel it is stated by witness that her father had died and his new father was Nageshwar Kujur. She never went to the house of father Nageshwar Rao along with her mother. She met with other persons also but they were not her grand father or grand mother. She did not remember who used to give food to her in the village. It is denied by witness that she deposed falsely against Nageshwar at the instance of her mother.
State v. Nageshwar Rao Page 6 FIR No.220/12, PS Fateh Pur Beri
(ix) PW9 SI Pradeep Kumar deposed before the court that on 01.09.2012 he received case file of present case for further investigation. On that day upon receipt of DD no.35B he along with HC Dharampal, Ct.Inderaj and complainant Ms.Polina went to Kotha Godown, Distt Khammam, Andhra Pradesh. On 05.09.2012 after reaching at above said place with the help of local police they went to residence of accused Nageshwar Rao i.e. 2/188, Seetampeta, Sujat Nagar, Kotha Godown, Distt Khammam. There accused was found with one child whose name was revealed as Lavanya in the above said house. Complainant had identified Lavanya. He interrogated accused, thereafter, Lavanya was recovered from the accused Nageshwar Rao. Child was handed over to her mother Polina /complainant vide memo Ex.PW1/C. He interrogated accused and his disclosure statement was recorded. One mobile phone make Micromax was recovered from accused by which he used to contact with complainant. Accused was arrested and his personal serach was conducted. Medical examination of the accused and child recovered from accused was got conducted at local hospital Kotha Gudem and MLC reports were collected. Transit remand against accused from concerned ACMM court of Kotha Gudem was obtained. Statement of witnesses were recorded. Thereafter they came back to Delhi along with accused and he was sent to lock up after his medical examination. Case file of the present case was handed over to SI Jaiveer at the instruction of SHO PS FP Beri.
In his cross examination by ld. Defence counsel it is stated by witness that he had tried to join public persons present at the spot but they could not be joined due to non understanding of their local language. They went to Andhra Pradesh by train. They reached at the State v. Nageshwar Rao Page 7 FIR No.220/12, PS Fateh Pur Beri residence of the accused at about 9 am. No other family members of accused were present at that time. The area was a residential area. It is denied by witness that no recovery was effected from accused or that accused was falsely implicated to work out the case.
(x) PW10 SI Jaivir deposed before the court that on 22.08.2012 he received original rukka and copy of FIR from concerned duty officer as further investigation of present case was marked to him. Complainant was also present in PS. Thereafter, he along with complainant Paulina Kujur went to spot i.e. Near Sahodya Jr. School, Aya Nagar New Delhi. He prepared site plan at the instance of complainant. He tried to search for child kidnapped by the accused and accused but no clue was found. Thereafter, they returned back at PS. Description of the said child was loaded on Internet. On 23.08.2012 W.T message was sent to all SSP in India and all SSP in Delhi. On 24.08.2012 he also conveyed the information regarding missing of the said child through letter to CBI, Director NCRP RK Puram and Delhi Doordarshan. Thereafter, case file was handed over to SI Pradeep Kumar at the instruction of concerned SHO for further investigation of the present case. On 07.09.2012 he received case file from SI Pradeep Kumar at the instruction of SHO concerned for further investigation of the case. Accused Nageshwar Rao arrested by previous IO SI Pradeep Kumar was produced before concerned court and JC was obtained. He got recorded the statement u/s 164 CrPC of victim Lavanya and collected details about the victim from the Sahodya Jr. School. Statement of witnesses were recorded. After completion of investigation challan was filed before the court.
In his cross examination by ld. Defence counsel it is stated by witness that he made departure entry but did not remember its number.
State v. Nageshwar Rao Page 8 FIR No.220/12, PS Fateh Pur Beri On 22.08.2012 at about 10.30 pm he went to school but none met there at that time. On 01.11.2012 he again went to school at about 11 am where he inquired from the class teacher, however he did not remember his name. He did not make any public witness except complainant as none was present there.
(xi) PW11 Ms.Surya Malik Grover was the ld. MM who recorded the statement of victim Lavanaya u/s 164 CrPC and proved the same vide memo Ex.PW11/A. Accused did not prefer to cross examine the witness.
(xii) PW12 Ct. Indraj deposed before the court that on 01.09.2012 he joined the investigation of the present case along with SI Pradeep and HC Dharam Pal and went to district Khammam, Andhra Pradesh along with complainant. On 05.09.2012 they reached at District Khammam, Andhra Pradesh and went to residence of accused i.e. 2/188, Sheetampetha, Sujat Nagar, District Khammam with the help of local police. When they entered into the said residence, one child was sitting in the lap of one person. Complainant identified that child as her daughter namely Lavanya. Complainant also identified the person in whose lap Lavanya was sitting as Nageshwar. Accused was apprehended with the help of police. Victim Lavanya was seized. Child was handed over to her mother/complainant in his presence. SI Pradeep Kumar interrogated the accused and his disclosure statement was recorded. Accused was arrested and his personal search was conducted. One mobile phone (Micromax) containing two sims of Idea and Vodafone were put into white cloth pullanda and sealed with the seal of JS. Medical examination of accused and child recovered from accused State v. Nageshwar Rao Page 9 FIR No.220/12, PS Fateh Pur Beri were got conducted. IO recorded his statement u/s 161 CrPC.
In his cross examination by ld. Defence counsel it is stated by witness that IO tried to join the public persons as witness present at the spot but they could not be joined due to non understanding of their local language. They went to Andra Pradesh by train and reached at the residence of the accused at about 10 am. No other family member of accused were present at that time. The area was a residential area.
4. Prosecution Evidence was then concluded. Statement of accused u/s 313 CrPC was recorded in which accused denied the allegations and stated that he did not want to lead any evidence in defence.
5. Final arguments were advanced by Ld. APP as well as by Ld. Defence Counsel in detail and also perused the record as well as evidence of all the witnesses. I have gone through the statement u/s 161 CrPC of all the witnesses.
6. As the accused has been charged for the offence punishable u/s 365 IPC, now I will discuss the offence and whether the same has been proved or not.
7. As per section 361 of IPC which is the definition clause ;
''whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
State v. Nageshwar Rao Page 10 FIR No.220/12, PS Fateh Pur Beri Hence, the essential ingredients of the offence are as follows :- (i) enticement, (ii) child should be minor, (iii) and should be out of lawful of the guardianship of the person who is authorized to be guardian of the minor''.
8. It does not need to be proved and is admitted that the prosecutrix was a minor. Further, the prosecturix has been enticed as she stated in her statement that "uncle mujhe kurkure aur biscuit bhi khilata tha". The prosecutrix was picked by the accused and she had been into illegal custody for six long days and it has been admitted by accused himself in his statement u/s 313 CrPC that he had taken the victim/prosecutrix without the consent of the complainant. Further, the victim/prosecutrix was found in the custody of the accused and the same fact has been corroborated by the statements of PW7 HC Dharampal and IO SI Pradeep Kumar and corroborated further by seizure memo Ex.PW1/B. Hence, all the ingredients of section 361/365 IPC are satisfied.
9. The only defence available with the accused that he presumed himself father of the prosecutrix and hence her natural guardian. The counsel has sought the support of the exception to sec 361 IPC. Now reverting to the exception of section 361 IPC which says that "this section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose".
10.The accused further stated that he has never had any malafide intention State v. Nageshwar Rao Page 11 FIR No.220/12, PS Fateh Pur Beri by taking the child neither he did it for any immoral purpose and he being the husband of the complainant was also the father of prosecutrix. The question that comes up now is whether a step father can be called father if the question of custody arises.
Under Section 6 of Hindu Minorities & Guardianship Act 1956, the section expressly states that a step father or step mother cannot be called a natural guardian for the purpose of this section which means that step father or step mother are not entitled to the legal custody of the child. Hence, the said arguments of the accused cannot be relied upon.
11.In Supreme Court of India Thakorlal D. Vadgama vs The State Of Gujarat on 2 May, 1973 Equivalent citations: 1973 AIR 2313, 1974 SCR (1) 178 Bench: Dua, I.D, the word 'takes' in section 361 I.P.C. does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means "to cause to go", "to escort" or "to get into possession". The word "entice" means to involve the idea of inducement or allurement by giving rise to hope or desire in the other. If the minor leaves her parental home, influenced by any promise, offer or inducement emanating from the guilty party then the latter will be guilty of an offence as defined in s. 361 I.P.C.
12.Further in State of Haryana v. Raja Ram A.I.R. 1973 S.C. 819 it was observed by this Court that the object of Section 361 seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charges or custody of their minor wards. The gravamen of this (kidnapping) is the 'taking' or 'enticing' of a minor girl under the ages specified in the section, State v. Nageshwar Rao Page 12 FIR No.220/12, PS Fateh Pur Beri out of the keeping of the lawful guardian without his consent.
13.Orissa High Court held categorically in Biswanath Mallick vs State Of Orissa on 21 October, 1994 Equivalent citations: 1995 CriLJ 1416, so far as offences punishable under Sections 363 and 366, IPC are concerned, it is necessary to note their essential ingredients, Section 363 provides for punishment in case of kidnapping of any person from India or from lawful guardianship. Kidnapping from lawful guardianship has been defined in Section 361. Essential ingredients of the said section are four in number, i.e., (i) taking or enticing away a minor or a person of unsound mind; (ii) such minor must be under sixteen years of age, if a male, or under eighteen years of age if a female;(iii)the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; (iv) such taking or enticing must be without the consent of such guardian. If the girl is less than 18 years of age, it is immaterial whether the girl consents or not. The taking need not be by force, actual or constructive. There must be a taking of the child out of the possession of the guardian. The Explanation to Section 361 provides that the words 'lawful guardian' in the said section include any person lawfully entrusted with the care or custody of such minor or other person. The word 'take' means to cause to go, to escort or to get into possession. It implies want of wish and absence of desire of the person taken. There is, however, a distinction between taking and allowing a minor to accompany a person. The word 'entice' involves an idea of inducement or allurement by exciting hope or desire in the other. The inducement or allurement may take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success, on the mental State v. Nageshwar Rao Page 13 FIR No.220/12, PS Fateh Pur Beri state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual, but imperciptible, impression culminating, after some time, in achievement of its ultimate purpose of successful inducement. The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship. The act of taking is not in the proper sense of the term a continuous act; when once the boy or girl has been actually taken out of the keeping, the act is a completed one. Enticement is an act of the accused by which the person kidnapped is induced of his or her own accord to go. to the kidnapper. It is not necessary that the taking or enticing should be shown to have been by means of force or fraud. Enticement need not be confined to any single form of allurement. Anything which is like to allure the minor girl would be sufficient. Where the minor kidnapped is a girl under eighteen years of age, it is no defence that the accused did not know the girl to be under eighteen, or that from her appearance or conduct she appeared to have attained the age of eighteen. There is an essential distinction between taking and enticing. The mental attitude of the minor is immaterial in the case of taking when an accused takes a minor with him, whether he or she is willing or not, the act of taking is complete and the condition is satisfied. But the word 'entice' involves an idea of inducement or allurement. One does not entice another unless the latter attempts to do a thing which she or he would not otherwise do. 8. Significantly the word 'possession' has not been used in the IPC, but the language used is 'out of the keeping, of the lawful guardian'. The word 'keeping' connotes the fact that it is compatible with independence of action and movement in the object kept. It implies neither apprehension nor detention but rather State v. Nageshwar Rao Page 14 FIR No.220/12, PS Fateh Pur Beri maintenance, protection and control, manifested not by continual action but as available on necessity arising. The word 'lawful' has been deliberately used in its wider connotation, and it is distinguishable from the word 'legal'. That has necessitated insertion of the Explanation.
14.All the ingredients of section 361/365 IPC are satisfied. Charge has been framed u/s 365 IPC i.e. kidnapping for the purpose of secret and unlawful confinement. In the present case the prosecturix was confined to the house of the accused for 6 days without permission of the legal guardian i.e. mother of the prosecutrix.
15.All the remaining witnesses whose testimony have been recorded in the court completely supported the prosecution case. The documents placed on record have been duly proved by the witnesses. Witnesses has made categorical and convincing deposition against accused. There is no doubt in identity of the accused. Considering the discussion made above, this Court holds that prosecution has been able to establish the charges beyond reasonable doubt.
16.Accordingly, accused Nageshwar Rao is convicted of offence punishable u/s 365 IPC. Ordered accordingly.
The matter is now listed on point of sentence for 05.07.2012.
Announced in the open court (PURVA SAREEN)
on 28th June 2013 MM-01/SOUTH/SAKET COURT
NEW DELHI
State v. Nageshwar Rao Page 15
FIR No.220/12, PS Fateh Pur Beri